State v. Calhoun

• Decision Date: 07 January 1893
• Citation: State v. Calhoun, 50 Kan. 523, 32 P. 38 (Kan. 1893)
• Parties: THE STATE OF KANSAS v. ROBERT CALHOUN
• Court: Kansas Supreme Court

32 P. 38

50 Kan. 523

THE STATE OF KANSAS v. ROBERT CALHOUN

Supreme Court of Kansas

January 7, 1893

Decided January, 1893.

Error from Marion District Court.

ALL of the material facts are stated in the opinion, filed January 7, 1893.

Judgment affirmed.

W. H Carpenter, for plaintiff in error:

The court below erred in overruling the objection made by plaintiff in error to the swearing of the jury, for the reason that the court below had no jurisdiction to try the case.

As the trial of the case, in the event plaintiff below succeeded meant that the judgment of the court in two cases would be vacated and set aside, it cannot be contended that the court below had any right to vacate, modify or set aside the judgments complained of, except as it proceeded according to either the code of civil or criminal procedure.

The trial court erred in overruling the objection made by the plaintiff in error to the introduction of evidence, for the reason that the assignment of errors did not state facts sufficient to constitute a cause of action against the defendant. If the claim of the defendant in error is true then the judgments of the court, of which he complains, were a fraud, and his pleas of guilty, upon which these judgments were based, were obtained by fraud; therefore, the action commenced by defendant in error was an action for relief on the ground of fraud, and was barred by the statute of limitations.

The trial court erred in sustaining the objection made by defendant in error to certain questions asked by plaintiff in error of the witness Keller on cross-examination. This objection was sustained on the ground that the questions called for an answer that would disclose a privileged communication made by a client to his attorney.

The trial court permitted the defendant in error, over the objection of the plaintiff in error, to prove by several witnesses that threats were made against the life of defendant in error, and which were not communicated to the defendant in error. Plaintiff in error contends that the court below erred in admitting this kind of testimony, for the reason that it could not have made any difference to the defendant in error what the real temper of the community was when he made his plea of guilty, as long as he did not know what it was; and it cannot be said that he was influenced in making his confession of guilt by a condition of affairs that he knew nothing about, or that he was frightened by threats of mob violence of which he never had the least intimation.

The court below allowed the defendant in error to prove what was said and done by the members of the supposed mob, long after defendant in error had pleaded guilty and had been sentenced, over the objections of plaintiff in error. This was error, and was such an error as materially injured the plaintiff in error.

The trial court erred in instructing the jury that they had no right to consider the question of the guilt or innocence of the defendant in error, and that it did not make any difference how guilty the defendant was.

The trial court erred in refusing to charge the jury as requested by plaintiff in error in its third and last request. If the defendant in error was actually guilty, and desired to enter his pleas of guilty irrespective of any fear of mob violence, certainly the fact that there was danger of his being injured would not permit him to say that that was the reason he entered such a plea.

Frank Doster, for defendant in error:

An accused who pleads guilty to a criminal charge, under duress for fear of mob violence, and who is sentenced to prison upon such plea, may, after the term at which sentenced, upon proceeding in error coram nobis, have such sentence revoked, the plea of guilty set aside, and a trial upon such charge. Sanders v. The State, 85 Ind. 318; Adler v. The State, 35 Ark. 517; In re Mallison, 36 Kan. 729. This proceeding, by implication from all the authorities and under the definitions of our statute, is a civil action, although brought to vacate a criminal sentence. Civil Code, §§ 7, 8.

Writs of error coram nobis were prosecuted at common law, not to review errors of law apparent upon the record, but to bring to view some matter dehors the record, which, upon being made to appear, justified the entry of a different judgment. Sanders v. The State, supra; Adler v. The State, supra. Jurisdiction to issue writs coram nobis is in the district court, (see authorities last cited,) and because the supreme court has only such "appellate jurisdiction as may be provided by law." Const., art. 3, § 3; Gen. Stat., ch. 27, § 1. And such supreme jurisdiction is to be exercised "in such manner as may be provided by law." Gen. Stat., ch. 27, § 1; Civil Code, § 727. The manner provided by law in civil cases is by petition and summons in error, (Civil Code, § 544,) with transcript of record, (Civil Code, § 546,) or case-made, (Civil Code, § 547.) The manner provided by law in criminal cases is appeal, (Crim. Code, art. 14,) with bill of exceptions, (Crim. Code, § 219.) Such jurisdiction can be exercised in no other manner than by such petition in error or appeal. Cohen v. Trowbridge, 6 Kan. 385.

While district courts have only "such jurisdiction as may be provided by law," (Const., art. 3, § 6,) yet the law vests them with "general original jurisdiction of all matters, both civil and criminal, not otherwise provided by law." Gen. Stat., ch. 28, § 1.

Habeas corpus will not lie because the process under which the confinement is had was issued on the final judgment of a court of competent jurisdiction. Civil Code, § 671; Ex parte Nye, 8 Kan. 99. None of the statutory remedies are available. The State v. Sanders, supra. The common law provided for writs coram nobis, and the "common law as modified, etc., remains in force in aid of the general statutes." Gen. Stat., ch. 119, § 3.

The common-law writ of error coram nobis may, under the express provisions of our statute, be sued out.

"If a case ever arise in which an action or proceeding for the enforcement or protection of a right or the redress or prevention of a wrong cannot be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice." Civil Code, § 727. By "practice heretofore in use," is meant the common-law practice, because the section quoted has been carried throughout the history of the code. Civil Code of 1859, § 614; Laws of 1858, § 603, p. 167. The issue of fact involved in a proceeding coram nobis is to be tried by a jury. Tyler v. Morris, 34 Am. Dec. 385; Adler v. The State, supra.

The statute of limitations does not run against the right claimed in a proceeding coram nobis. Powell v. Gott, 53 Am. Dec. 153; Latshaw v. McNees, 50 Mo. 381. And it does not run against the right of a person under disability. Gen. Stat., ch. 31, § 434; Civil Code, § 19; Angell, Lim. (6th ed.), § 195; Moore v. Armstrong, 36 Am. Dec. (note) 72.

The rules of practice in the prosecution of writs of error coram nobis are outlined in Holford v. Alexander, 46 Am. Dec. (note) 260; Adler v. The State, supra.

A convict is a competent witness for himself. 1 Greenl. Ev., § 374.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

At the February term of the district court of Marion county, in 1885, the grand jury found two indictments against Robert Calhoun for defiling females under the age of 18 years, committed to his care and protection, by carnally knowing them. The fact of such indictments having been found became known in the community. The public mind became greatly excited and hostile to the accused. Threats of lynching him were freely made, and preparations to carry out the same were apparently going on. Knowledge of these threats and preparations was communicated to the accused, who was then in jail, and the same produced in his mind such a state of fear, that, to appease the passions of the community, and secure himself from bodily violence, he pleaded guilty to the charges contained in such indictments, and was sentenced to the maximum limit of punishment--21 years' confinement in the penitentiary at hard labor, in each case. In March, 1892, in the district court of Marion county, he brought proceedings in the nature of those known to the common law as writs of error coram nobis, to revoke the aforesaid sentences, and to set aside the pleas of guilty, upon the ground that such pleas had been extorted from him by duress and threats and appearances of impending and imminent mob violence, operating upon his fears, whereby he had not been allowed his constitutional rights to plead his innocence of the charges alleged against him in said indictments, to defend against the same in person and by counsel, to meet the witnesses against him face to face, and to have a public trial by an impartial jury. A trial was had in the error coram nobis proceeding at the September term, 1892, before the court and a jury, and the jury returned a general verdict in favor of the plaintiff, Calhoun, and also returned a special verdict, which, omitting title and signature, reads as follows:

"We the jury impaneled and sworn, upon our oaths do find, that in the cases numbered 1546 and 1547, in the district court of Marion county, Kansas, at its February term for the year 1885, wherein the state of Kansas was plaintiff and Robert Calhoun was defendant, being indictments for the offenses of carnally knowing females under the age of 18 years, confided to his care and protection, found and returned by the grand jury of said county, at said term, and to which said indictments said defendant pleaded guilty, that the said pleas of guilty were made by said defendant unwillingly and involuntarily, and...